Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 110
P468/13	OPINION OF LORD PENTLAND in the Petition by WILLIAM CRAIG Petitioner; For Judicial Review of a decision of the Parole Board for Scotland dated 4 December 2012 to refuse to hold an oral hearing ________________

Petitioner: Leighton; Drummond Miller LLP

Respondent: Dunlop QC; Anderson Strathern LLP

5 July 2013

Introduction

[1] The petitioner is a convicted prisoner currently detained in Glenochil Prison. The respondent is the Parole Board for Scotland. The petitioner challenges the respondent's refusal to hold an oral hearing to consider whether he should be re-released following his recall to prison for breaching the terms of his licence. The petition came before me for a first hearing. In the course of the hearing counsel for the petitioner restricted the challenge to one based on alleged breach of the respondent's common law duty to act in a procedurally fair manner. The petitioner had originally sought to challenge the decision on the further ground that it contravened his rights under article 5(4) of the European Convention on Human Rights. I was, however, told that judgment is awaited from the Supreme Court in two appeals where the issue concerns the circumstances in which a prisoner is entitled under article 5(4) to an oral hearing when the Parole Board is reviewing his case (Osborn & Booth v Parole Board [2010] EWCA 1409 and Reilly v Parole Board [2011] NICA 6). In view of this senior counsel for the respondent gave a written undertaking so as to avoid what was described as a sterile argument on article 5(4) in the present case. The undertaking was that in the event of the Supreme Court's decision in Osborn & Booth and Reilly being such that a prisoner in the circumstances of the petitioner is entitled to an oral hearing, the respondent would mark consent to an application for reduction of the decision complained of in the present petition. The undertaking is recorded in the minute of proceedings. The upshot of this undertaking is that I need only consider in the present opinion the challenge brought by the petitioner under the common law.

The relevant facts

[2] The facts of the present case may be summarised as follows. On 23 January 2008 the petitioner, on the basis of evidence which the trial judge said he regarded as overwhelming, was convicted after trial in Glasgow High Court of an offence of assault and robbery committed on 23 June 2007. At the time of the offence the petitioner was on bail. The offence was constituted by the petitioner entering a restaurant with his face masked and presenting a knife at two employees, demanding that they get down on the floor, holding knives at their heads, demanding that they open tills, demanding to know the whereabouts of the safe and robbing them of an unspecified sum of money.

[3] The petitioner had a very bad record of previous criminal convictions. Of particular note was a conviction in the High Court for assault and robbery on 10 March 2004; this resulted in his imprisonment for a period of 42 months and the imposition of a supervised release order for a period of 6 months.

[4] Even after that conviction, the petitioner had been convicted on indictment in Glasgow Sheriff Court on 9 January 2007 for two charges of breach of the peace and a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, the offensive weapon being a knife. The section 47 charge resulted in imprisonment for a period of 8 months.

[5] On 15 January 2007 the petitioner was convicted at sheriff summary level under the Forgery and Counterfeiting Act 1981, section 15(1)(a) and was sentenced to 2 months' imprisonment on 6 February 2007.

[6] On 1 May 2007 at Glasgow District Court, the petitioner was imprisoned for 3 months for a contravention of section 57(1) of the Civic Government (Scotland) Act 1982.

[7] In his report to the respondent the trial judge, Lord Matthews, noted also that the petitioner's previous record had included over 20 convictions for offences of dishonesty at summary level.

[8] In these circumstances, it is hardly surprising that the trial judge decided to impose an extended sentence on the petitioner. The extended sentence was for a period of 10 years. This consisted of a custodial term of 7 years and 6 months (of which 6 months was attributable to the fact that the petitioner had been on bail) to run from 25 June 2007 when he first appeared on petition. The extension period was set at 2 years and 6 months.

[9] The trial judge's report records the petitioner's acceptance that the motivation for his sustained record of offending lay in persistent alcohol and drug abuse. The petitioner was a heroin addict. He was assessed as being at a very high risk of re‑offending.

[10] On 22 June 2012 the petitioner was released on non-parole licence, having reached the two-thirds stage of the custodial part of the extended sentence. Condition 6 of his licence was that he should be of good behaviour and keep the peace.

[11] On 19 July 2012, less than one month after being released on licence, the petitioner, who was in possession of controlled drugs, intentionally obstructed police officers attempting to carry out a drugs search, in contravention of section 23(4)(a) of the Misuse of Drugs Act 1971. He was in due course convicted of this offence and, on 20 August 2012, sentenced to a further period of imprisonment of 7 months, backdated to 20 July 2012. He was acquitted of a charge of breach of the peace.

[12] As a result of his latest offending, the Scottish Ministers revoked the petitioner's licence and referred his case to the respondent under and in terms of section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). At a meeting held on 11 September 2012 a panel of the respondent's members unanimously agreed that the petitioner should be recalled to custody. The respondent then notified the petitioner that he had a period of 4 weeks in which to make representations as to whether he should be released. A meeting to consider that question was fixed for 4 December 2012.

[13] For the purposes of considering the question of recall the respondents had the benefit of a Throughcare Licence Breach Report prepared by social workers from Glasgow City Council; one of the authors was the petitioner's supervising officer. In the report the petitioner was assessed as presenting a high risk of re‑offending and a high risk of causing further harm should he re‑offend. His criminogenic needs were stated to be: negative peer influence, alcohol misuse, drug misuse, employment history and anti-social attitudes to the law and law enforcement. The report recorded that the petitioner admitted spending time with men who would appear to be involved in some measure of violence either against themselves or others. He also admitted having taken medication from his sister to help him withdraw from Methadone without consulting his general medical practitioner.

[14] The petitioner's dossier also contains a summary of the evidence in his most recent case. This states that on 19 July 2012 police officers observed the petitioner at a location known to be a hotspot for drug activity. They saw him walking towards a person, who appeared to be waiting for no apparent reason and who seemed to be under the influence of drugs. The police officers suspected that a drugs transaction was about to take place. They saw the petitioner call the other person over towards him. According to the summary, the petitioner appeared to notice the police officers' ear pieces; he looked startled and immediately began walking hurriedly in the opposite direction. The police officers ran towards him and, as they did so, they saw that the petitioner was holding something in his hand. They also observed brown resin stains on his fingers, a common finding in the case of persons who burn cannabis resin and use their thumb and forefinger to crumple the cannabis into a reefer cigarette. There was a smell of cannabis emanating from the petitioner.

[15] The summary then continues by explaining that when one of the officers identified himself and informed the petitioner that he was being detained for a drugs search, the petitioner placed one hand to his mouth and put a small bag with brown powder inside his mouth. He then swallowed it.

[16] The petitioner submitted a number of "self-representations" in September and October 2012 for the purposes of the hearing on 4 December 2012. He explained that the circumstances of his latest offence arose when he had been waiting outside his doctor's surgery. He had intended to ask for medical advice about his anxiety state. According to the petitioner, a friend had given him a small piece of cannabis and advised the petitioner to sprinkle this in a cup of herbal tea; this would help his anxiety. The petitioner claimed that he panicked and swallowed the cannabis when he saw the police officers. His intention had been to ask his doctor whether the solution suggested by his friend would work.

[17] A firm of solicitors instructed by the petitioner also submitted a set of representations dated 29 November 2012. These representations contained the following short passage:

"I would however ask that the Parole Board for Scotland to (sic) consider that it might be appropriate in the circumstances of my case to hold a tribunal. If there is anything the Parole Board for Scotland is concerned about or wishes further information about this could be dealt with by way of a Tribunal."

[18] The respondent treated this request as an application by the petitioner that they should hold an oral hearing before determining whether he should be released from custody.

The respondent's decisions

[19] The petitioner's case came before the respondent on 4 December 2012 to consider whether he should be re-released. The respondent noted that the petitioner had requested an oral hearing. The respondent stated the following in regard to this request:

"However, given the context and circumstances of the recall and the finding of guilt in response to the Misuse of Drugs Act 1971 offence, the Board considered that it had sufficient information to reach a decision in this case.

(The petitioner) is assessed as a high risk of re-offending and a high risk of causing harm. Risk factors include negative peer influences, alcohol and drug misuse, employment history. In the Throughcare Breach Report, his supervising officer states that (the petitioner) admitted to her that, back in the community, he was spending time with men who appear to be involved in some measure of violence, either amongst themselves or others.

Having considered the information contained within the dossier, the Board concluded that it was satisfied that the information it had before it was sufficient to enable it to reach a decision in this case and that no further inquiry was necessary."

[20] The note of the respondent's decision then continued by recording that the Board was unanimous in agreeing not to order the petitioner's immediate re‑release; it gave the following reasons for its decision:

"(The petitioner) was released on non-parole licence on 22 June 2012. After only a few weeks in the community, he was arrested, charged and detained in custody on 19 July 2012. He was subsequently convicted of a further offence under the Misuse of Drugs Act 1971 having been found guilty of obstructing a search when suspected of being in possession of drugs. He received a 7 months custodial sentence, thereby breaching Condition 6 of his release licence, "you shall be of good behaviour and shall keep the peace". Drug use has been a factor in his previous offending and he continues to be assessed as a high risk of re-offending and a high risk of causing harm. (The petitioner's) risk is not currently manageable in the community and he should remain in custody. The circumstances of his recall offence indicate that he requires to develop a more robust relapse prevention strategy in respect of his drug use. Following his release in June 2012, (the petitioner) struggled to find accommodation and his wife provided temporary accommodation up until her own arrest. (The petitioner) was then homeless up until the point of his arrest in July 2012. A further period in custody will also provide him with an opportunity to develop a more structured plan for his release."

The statutory test for release of an extended sentence prisoner and for an oral hearing

[21] Section 3A of the 1993 Act applies to a prisoner serving an extended sentence whose licence has been revoked under section 17. The petitioner is such a person. Subsection (4) of section 3A provides as follows:

"Where the case of a prisoner to whom this section applies is referred to the Parole Board...the Board shall, if it is satisfied that it is no longer necessary for the protection of the public from serious harm, that the petitioner should be confined (but not otherwise), direct that he should be released."

[22] The rules governing the holding of oral hearings by the respondent are now to be found in rule 15A of the Parole Board (Scotland) Rules 2001 (SSI 2001/315). Sub‑paragraph (1) of this rule provides as follows:

"If it considers that it is in the interests of justice to do so, the Board may -

(a) on the application of the person concerned; or

(b) of its own motion,

determine to deal with the case by way of an oral hearing."

[23] Sub‑paragraph 2 of rule 15A makes it clear that the petitioner's case is one of the categories of case in which the respondents may competently hold an oral hearing. His case falls within sub-paragraphs 2(a) and (c) because it was referred to the respondent by the Scottish Ministers under section 17(3) of the 1993 Act and also because he was an extended sentence prisoner who had been recalled to custody while serving the custodial term.

The petitioner's arguments

[24] Counsel for the petitioner pointed out that in his written representations the petitioner had sought to distinguish the circumstances of his latest offence from his previous heroin addiction. He observed, under reference to the judgment of the Court of Appeal in Osborn & Booth, that it was a matter of law for the court to decide whether common law procedural fairness required an oral hearing in the particular circumstances of the case. Such a hearing, counsel said, would have allowed the petitioner a full opportunity to explain that, contrary to the respondent's apparent belief, he did not in fact need to develop a more robust relapse prevention strategy in respect of his drug use. At an oral hearing the petitioner could have sought to persuade the respondent that his present relapse prevention strategy was sufficiently robust.

[25] Counsel submitted that an oral hearing would also have allowed the petitioner to put his own complexion on the core facts. In support of that proposition he relied on a number of well-known passages (in paragraphs 30 and 31) in Lord Bingham of Cornhill's speech in R (West) v Parole Board; R (Smith) v Parole Board [2005] 1WLR 350. There his Lordship observed that the Parole Board had to balance public safety (with which they could not gamble) against the prisoner's freedom. He said that an oral hearing might well contribute to achieving a just decision. Lord Bingham referred to what was said by Brennan J in the Supreme Court of the United States: written submissions are not a satisfactory basis for resolving issues of credibility and veracity (Goldberg v Kelly (1970) US 254, 269).

Counsel drew attention also to the following observations in Lord Bingham's speech (paragraph 35):

"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a...prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision‑maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."

[26] Counsel argued that the facts of the petitioner's case were similar to those of the appellant Smith. That could be seen from what Lord Bingham said at paragraph 46 of his speech:

"The resort to class A drugs by the appellant Smith clearly raised serious questions, and it may well be that this challenge would have been rejected whatever procedure had been followed. But it may also be that the hostels in which he was required to live were a very bad environment for a man seeking to avoid addiction. It may be that the board would have been assisted by evidence from his psychiatrist. The board might have concluded that the community would be better protected by encouraging his self‑motivated endeavours to conquer addiction, if satisfied these were genuine, than by returning him to prison for 2 years with the prospect that, at that end of that time, he would be released without the benefit of any supervision. Whatever the outcome, he was in my opinion entitled to put these points at an oral hearing. Procedural fairness called for more than consideration of his representations, on paper, as one of some 24 such applications routinely considered by a panel at a morning session."

[27] Counsel pointed out that it appeared from the copy of the decision contained in the petitioner's dossier that his had been the nineteenth case considered by the respondent at its meeting on 4 December 2012.

[28] Counsel cited also what Lord Hope of Craighead said in paragraph 66 of his speech:

"First, the figures that we have been given appear to me to indicate that there is a long‑standing institutional reluctance on the part of the Parole Board to deal with these cases orally. It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute. If the system is such that oral hearings are hardly ever held, there is a risk that cases will be dealt with instead by making assumptions. Assumptions based on general knowledge and experience tend to favour the official version as against that which the prisoner wishes to put forward. Denying the prisoner the opportunity to put forward his own case may lead to a lack of focus on him as an individual. This can result in unfairness to him, however much care panel members may take to avoid this."

[29] Counsel for the petitioner referred in addition to parts of the judgments in Osborn & Booth. He mentioned paragraph 27 where Carnwath LJ observes that the guidance emerging from R (West) and R (Smith) is encapsulated in paragraph 35 in Lord Bingham's speech, which I have set out above. The position under article 5(4) is no different from the position at common law (see R (O'Connell) v Parole Board [2007] EWHC 2591 per Latham LJ at para. 21).

[30] In paragraphs 39 to 42 in Osborn & Booth Carnwath LJ considered the role of the court in a case where a decision not to hold an oral hearing is challenged. Fairness should, his Lordship stated, be judged in the context of the circumstances identified and evaluated by the Parole Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk.

[31] Counsel referred also to paragraph 56 in the judgment of Moses LJ where his Lordship observed that the Parole Board must always bear in mind the power of oral persuasion and discussion and their possible effect on cases hitherto believed to be "open and shut".

[32] Counsel submitted that had the respondent chosen to believe the petitioner's account and explanations after affording him an oral hearing, it would have been open to the board to conclude that he did not present any appreciable risk of causing further harm to the public.

[33] Finally, counsel noted that in its decision of 4 December 2012 the respondent had mistakenly understood that the petitioner had been convicted of the breach of the peace charge whereas he had, in fact, been acquitted of that particular offence. An oral hearing would have allowed the petitioner to correct that mistake.

The respondent's reply

[34] In reply to the petitioner's submissions, senior counsel for the respondent stressed the fact that the petitioner had a bad record of previous convictions. He emphasised also that the trial judge had discerned a clear link between the petitioner's offending and his drug abuse. Against that background, the respondent was bound to be seriously concerned by the fact that the petitioner had committed a drugs offence within one month of his being released on licence. This constituted a flagrant breach of the trust placed in him. In the circumstances, the respondent could not possibly have been satisfied under section 3A(4) of the 1993 Act that it was no longer necessary for the protection of the public from serious harm that the petitioner should be confined, whatever might have transpired at an oral hearing. Counsel laid stress on the passage in brackets in the sub-section: "but not otherwise". The test for release of an extended sentence prisoner contained in sub-section (4) was evidently intended to be a high one. Given the unchallenged circumstances of the present case, the petitioner could not conceivably satisfy the test under any form of procedure.

[35] Senior counsel argued that the reasons given for refusing to allow an oral hearing were not (and could not be) impugned by the petitioner. In outline, they were: (a) the petitioner had reoffended within a few weeks of being released on licence; (b) he was subsequently convicted of obstructing a search when suspected of being in possession of controlled drugs; (c) he was sentenced to a further 7 months imprisonment; (d) he was in plain breach of the condition of licence requiring that he be of good behaviour and keep the peace; (e) drug abuse had been a factor in the petitioner's history of offending and (f) the petitioner was, at the time of the respondent's consideration, assessed as a high risk of reoffending and a high risk of causing harm.

[36] Senior counsel went on to explain that the respondent had carried out an extensive review of its practice in relation to the allowance of oral hearings in the light of R(West) and R (Smith). Rule 15A had been added by the Parole Board (Scotland) Amendment Rules 2011 /133 (SSI 2011/133). It was clear that the respondent did not have to hold an oral hearing in every case. Yet effectively that would be the effect of what the petitioner was arguing for. His case was so weak that if the respondent had to allow him an oral hearing it would require to follow the same practice in every case where one was requested.

[37] Counsel for the respondent submitted that the thrust of the Court of Appeal's reasoning in Osborn & Booth was that the court should evaluate whether an oral hearing was necessary on the basis of the facts as they were established before the respondent. Applying that approach in the circumstances of the present case, it could be clearly seen that an oral hearing would inevitably be a pointless exercise.

[38] The only substantive point which it was said by the petitioner that he wanted to make orally was that the drug involved in his most recent conviction was cannabis rather than heroin. The respondent was fully aware of that fact; the petitioner had set out his version of events in detail in his written representations. But the distinction between the two types of controlled drug was neither here nor there in the circumstances of the petitioner's case. The central point in the respondent's reasoning was that the petitioner had yet again become involved in criminality concerned with controlled drugs.

[39] In R (Byrne) v Parole Board [2011] EWHC 2598 (Admin) Judge Sycamore had regarded it as important that the prisoner had advanced no case specific arguments in favour of an oral hearing. The same could be said in the present case. It was notable that the request for an oral hearing in the present case had been couched in somewhat vague, general and half-hearted terms.

[40] In R (Boylan) v Parole Board [2012] EWHC 1233 (Admin) Judge Belcher had asked himself the question whether an oral hearing could have made any difference to the outcome or have had some impact on the underlying issue in the case (para. 32). Applying that approach to the circumstances of the present case, it was clear that an oral hearing could not conceivably have affected the inevitable outcome in view of the undisputed core facts.

[41] Finally, senior counsel submitted that the respondent's misunderstanding that the petitioner had been convicted of the breach of the peace charge was irrelevant. The panel had understood that he had been admonished on that charge. They had placed no reliance on that in coming to their decision.

[42] Senior counsel referred also to King v East Ayrshire Council 1998 SC 182 for the proposition that the court does not act in vain in the context of exercising its supervisory jurisdiction. He referred also to MC Petitioner [2013] CSOH 65 for the proposition that (in disciplinary proceedings) the critical question is whether the hearing of evidence is essential to permit the critical facts to be fairly considered. Judgment must be exercised in each case to determine what depth of hearing fairness requires.

Analysis

[43] In my opinion, it is important to understand that the respondent's practice in regard to holding oral hearings in cases such as the present one has moved on considerably as a result of the decision by the House of Lords in R(West) and R (Smith). In Osborn & Booth Carnwath LJ said the following at paragraph 29 of his judgment:

"It needs also to be borne in mind that since the Smith decision there has been a significant change in the practice of the Board. At that time oral hearings were wholly exceptional. Some of the comments in the speeches, and in later cases, need to be read with that in mind."

[44] I accept that there is no longer anything in the nature of an institutional resistance on the part of the respondent against allowing oral hearings. The approach it now follows is guided by rule 15A; this confers a broad discretion on the respondent. It adopts a case-sensitive approach in deciding whether there should be an oral hearing and makes its decision on the basis of an evaluation as to whether such a hearing is necessary in the interests of justice in the particular circumstances of the case.

[45] The problem remains, however, as Moses LJ said in Osborn & Booth of resolving the issue as to whether fairness requires an oral hearing. That problem lies in the difficulty, if not impossibility, of identifying any bright line test for identifying cases in which an oral hearing should be held and those in which such a hearing is not required as a matter of fairness. Various tests have been suggested and applied in the case law and indeed in argument in the present case: could an oral hearing conceivably make a difference to the outcome; could it have an impact on a disputed central issue; are there case-specific arguments which an oral hearing could get to the bottom of; are there issues of credibility or reliability in play; could such a hearing put a different complexion on the admitted facts or cause them to appear in a new light; would an oral hearing allow the prisoner to address issues that are troubling the respondent.

[46] It seems to me that these different formulations of possible tests are really attempts to give concrete substance to the underlying question in all such cases. That is whether, in the particular circumstances of the case, the interests of justice require that the prisoner should be allowed an oral hearing. In addressing that fundamental question it is clear that an oral hearing is not required in every case. It seems to me right to acknowledge that the Parole Board has, in the years since the seminal cases of R (West) and R (Smith), developed a culture in which it has built up a good working understanding of when an oral hearing is required in order to satisfy the interests of justice. The Board is, of course, highly experienced in addressing all the practical issues that arise in the cases that come before it; these include: the needs and concerns of prisoners and their legitimate expectations, the realities of prison life, the way in which the early release and recall systems work in practice and the overarching obligation to exercise its powers so as to ensure public protection. All of this experience feeds into and informs the substantive decisions that the Board takes in the large number of individual cases that it is called on to consider. Such practical experience also equips the Board with the ability and skills to identify the cases in which the interests of justice require there to be an oral hearing.

[47] None of this means, of course, that the court should defer to the decision of the Parole Board on whether to allow an oral hearing in any particular case; the question remains ultimately one of law for the court. But it does mean, in my view, that the court should be willing to attach an appropriate measure of respect to the decision of the respondent on the oral hearing question and acknowledge that its decision is likely to have been based on its undoubted expertise built up from consideration of a very large number of cases.

[48] Turning then to the facts of the present case, I have reached the view, ultimately without difficulty, that the respondent was clearly right to decide that an oral hearing was not necessary to ensure that justice was done and seen to be done in the particular circumstances of the petitioner's case. In coming to that decision, I am influenced by a number of considerations. Firstly, the underlying cause of the petitioner's extensive record of serious offending undoubtedly lies in his longstanding problems of drug and alcohol abuse. Secondly, he was released on licence from the custodial part of his extended sentence on trust and on the clear understanding that he would refrain from any further drug abuse and would stay out of trouble. Thirdly, within a very short period of time following his release the petitioner signally failed to abide by these fundamental conditions. He admittedly spent time with men who were involved in violence. He became involved again with controlled drugs. He offended against the Misuse of Drugs Act. All of this shows that there was a rapid breakdown of his drug relapse prevention strategy. Undoubtedly, as it seems to me, the facts demonstrate that the strategy was not sufficiently robust. That is exactly the conclusion reached by the respondent after careful consideration of all the core facts, none of which was in dispute. In these circumstances, I am unable to see that there would have been any possible advantage in holding an oral hearing. At any such hearing the petitioner would not have been able to escape the obvious conclusion arrived at by the respondent. There is nothing that he could have said or done at an oral hearing which could possibly have led to any other view being taken than that it would be unsafe to allow him, at the present time, to be re-released into the community. Fourthly, the distinction which the petitioner seeks to draw between heroin and cannabis is without any merit in the context of his particular problems. The incontrovertible fact was that the petitioner had quickly slipped back into the world of illegal drug use and lack of respect for the law. In the circumstances, I conclude that the respondent was correct to hold that the interests of justice did not require there to be an oral hearing.

[49] As to the mistaken reference in the respondent's decision to the petitioner having been admonished on the breach of the peace charge, whereas he had in fact been acquitted, there is nothing in this in my opinion. It is clear from the note of the respondent's decision that they placed no weight on this; it plainly did not influence the decision to any extent. Accordingly, had there been an oral hearing at which the point was clarified, this could not have made any difference to the outcome.

[50] In these circumstances, the petitioner's challenge to the respondent's refusal to allow him an oral hearing, insofar as based on the common law, must fail. Were it not for the article 5(4) issue, I would have given effect to that decision by sustaining the respondent's second and third pleas-in-law and refusing the petition. There remains, however, the challenge brought under article 5(4) of the convention. As to that the respondent has given the undertaking to which I have already referred. The petition will have to be kept alive pending the Supreme Court's decisions in Osborn & Booth and Reilly. When those rulings are available, parties can enrol appropriate motions to give effect to this judgment and to those issued by the Supreme Court. In the meantime, I shall sist the petition. I shall reserve all questions of expenses.